Updates on CMS and OSHA Vaccine Mandates

Posted on November 18, 2021 by Jonathan Lips

As providers continue preparing to implement staff vaccination mandates, here are the latest available situational updates:

CMS Omnibus COVID–19 Health Care Staff Vaccination Rule

CMS has clarified that the Phase 1 implementation deadline is Dec. 6, not Dec. 5.

In its first national stakeholder call to summarize the rule, CMS highlighted Dec. 5 (30 days after the rule became effective), but they clarified that the deadline is Monday, Dec. 6 because Dec. 5 falls on a Sunday. By Dec. 6, covered facilities must have established all policies required by the regulations.

All covered staff must have received, at a minimum, a single dose COVID–19 vaccine or the first dose of the primary vaccination series for a multi-dose COVID–19 vaccine, except for those staff who have requested a medical or religious exemption.

Unfortunately, CMS has not yet issued interpretive guidelines for surveyors and providers relating to the rule, other than the FAQ resource it published Nov. 5. The LeadingAge national team is pushing CMS to provide the promised guidance as the Phase 1 implementation deadline draws nearer.

LeadingAge Minnesota has posted a toolkit with a sample policy and sample medical and religious exemption forms, along with a recording of a Nov. 11 webinar on these topics presented by attorneys from Felhaber Larson and the PowerPoint slides from that event.

Three lawsuits have now been filed in federal court to challenge the CMS rule on vaccination mandates. However, members must understand that the rule is still in full effect and preparation for compliance must continue.  

Ten states (MO, NE, AR, KS, IA, WY, AK, SD, ND and NH) filed the first case last week. This week, 12 additional states (LA, MT, AZ, AL, GA, ID, IN, MS, OK, SC, UT, and WV) filed a separate suit, and Texas filed a standalone lawsuit. The first step in each of these cases will be for the courts to rule on motions for a temporary injunction to halt implementation. 

There is no timeframe yet on when any of the district courts expect to rule. In the meantime, the rule remains in full effect, and CMS and state survey agencies have not delayed any implementation or enforcement dates.

OSHA COVID-19 Vaccination and Testing Standard

On Nov. 17, OSHA posted a note to its website that it has suspended implementation and enforcement of the COVID-19 vaccination and testing emergency temporary standard (ETS) pending future developments in ongoing litigation challenging the standard.  

This story from McKnights Senior Living offers detailed coverage. The legal activity relating to the OSHA rule has no impact or bearing on the CMS rule, which remains in full effect as noted above.

OHSA's statement reads: On Nov. 12, the US Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on Nov. 5 (86 Fed. Reg. 61402) ("ETS"). The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation."

According to Argentum, at least 27 states have challenged the legality of vaccination and testing ETS, along with challenges by private litigants and business groups. The Fifth Circuit federal court of appeals issued a nationwide stay of the ETS shortly after it was issued, pending expedited review of the ETS and OSHA's justifications for it. That court upheld the stay on Nov. 12. However, according to a federally-required procedure, the various OSHA legal challenges will be grouped for resolution. The Sixth Circuit federal appeals court was selected by lottery to decide the consolidated challenges. The Sixth Circuit is not obligated to keep the stay of the ETS entered by the Fifth Circuit.

We are monitoring developments following OSHA’s announcement about the vaccination standard and will share more information on the impact of the suspension as it becomes available.  Meanwhile, providers are encouraged to continue analysis and planning around the OSHA ETS, knowing the Sixth Circuit could revive it.

It's also important to note that OSHA’s COVID-19 healthcare emergency temporary standard, effective June 21, remains in effect until Dec. 21. See this recent Advantage article for a summary of that healthcare standard, which applies to settings where suspected or confirmed individuals with COVID-19 are treated, including assisted living communities, nursing homes, and settings where home healthcare and hospice care are provided.

Although the healthcare standard is set to expire on or before Dec. 21, OSHA could change it or act to make it permanent, and we will watch closely for any action by OSHA on this front. 

The Minnesota Department of Labor and Industry’s OSHA division will offer a webinar on Monday, Nov. 22, at 10-11 a.m. Register here to join. To join by phone, call 415-655-0003 or 855-282-6330 and enter access code 2498 503 2926. MNOSHA notes that the webinar is informational only. Its adoption, implementation, and enforcement will depend on the current litigation challenging the federal OSHA ETS. The webinar content is subject to change as the current litigation makes its way through the process.